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McCain’s Speech on Judicial Nominations



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Here are selected excerpts from the official text of the strong speech on judicial nominations that Senator McCain is scheduled to be delivering now: 

In the end, of course, [the Framers’] grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn’t always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America – voters in both parties whose wishes and convictions are so often disregarded by unelected judges – are entitled to know what those differences are.

Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power. The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself….

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of “judicial activism.” But real activism in our country is democratic. Real activists seek to make their case democratically – to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don’t seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered “settled law,” and everything else is fair game….

For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me….

I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.

Tags: Whelan

McCain on Judges



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On NRO’s Campaign Spot, Jim Geraghty has an interesting post previewing Senator McCain’s speech today on judicial appointments and reciting McCain’s contemporaneous comments on the Bork and Souter nominations.  This excerpt from a 1990 Los Angeles Times article on the Souter nomination is noteworthy:

 

Republican Sens. Phil Gramm of Texas and Don Nickles of Oklahoma each gave tentative endorsements to Souter. But Republican Sen. John McCain of Arizona expressed frustration that the President had nominated a low-profile judge, apparently to avoid the kind of blood bath triggered by the nomination of Bork.

“Any first-year law student would tell you his chance of an eventual appointment to the Supreme Court is directly related to the paucity of writing or speaking on controversial issues,” McCain said acidly. “It gives us a largely unknown quantity in appointments to the bench.”

Tags: Whelan

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Patent Error



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A law professor at George Washington U. notices a glitch in a 1999 act of Congress.  As a result of that glitch, it may be that “thousands of patent decisions concerning claims worth billions of dollars” are invalid because judges on the patent appeals courts were unconstitutionally appointed.

A fascinating, albeit small, question is raised by this story.  When the Constitution referred to “Heads of Departments,” whom did it mean, inasmuch as no “Departments” yet existed or were brought into being by the Constitution itself?

“I find that when I tell lawyer jokes to a mixed audience, the lawyers don’t think they’re funny and the nonlawyers don’t think they’re jokes.”



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This Week in Liberal Judicial Activism—Week of May 5



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Attacks on marriage and Mother’s Day, filibusters, and ABA misdeeds: 
           

May 51993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples.  In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture. 

  
May 82006—When left-wing activist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating.  Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.  Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36.  (See here for a fuller account.)   
  
May 102006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is not as fortunate as Kavanaugh.  In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified”.   After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.
  
May 112008—Happy Mother’s Day!  No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day.  Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”  In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex.  (See here for relevant excerpts from the report.)
  

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

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A Religious Case in the Court this Fall?



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The Supreme Court has not heard a straight-on Free Exercise case since it decided Lukumi in 1993. That case involved some off-beat religious observances, at least if one considers animal sacrifice “off-beat.” The city of Hialehah prohibited the ritual slaughter of animals, which did not just happen to be a regular practice of a marginal and unpopular local sect, called “Santeria.” The constitutional problem was complicated by the fact that slaughtering animals for sport or for food was not restricted. Thus the ordinance targeted widely permitted conduct — animal slaughtering — but only when done for specifically religious reasons. Circumstances left no doubt, either, that the whole idea was to suppress the Santeria folks. The Supreme Court rightly said that the law violated the Free Exercise Clause.

Two cases the Court is now considering may break the long Free Exercise drought. One is St. John’s United Church of Christ v. City of Chicago. O’Hare Airport wants to build a new runaway. That welcome news to travelers is bad news for a small religious cemetery which lies in the runway’s path. The only way to for the runway to clear legal obstacles was for the Illinois legislature to suspend operation of a religious liberty law which would have protected the cemetery from destruction. That law discriminated against a religious use of property; the cemetery was expressly targeted. But, unlike the Hialehah case, there was no anti-religious animus. Progress not prejudice was the driving force. The law firm of Hogan and Hartson filed the petition for Supreme Court review in this case.

 

The other case is Lighthouse Institute for Evangelism v. City of Long Branch. Long Branch, New Jersey banned all churches from its moribund downtown in order to reinvent it as a regional entertainment destination. So, theaters and bars: good. Churches and soup kitchens: bad. The Beckett Fund for Religious Liberty represents a small church told it could not use its downtown property to minister to the poor. This case raises the same issue as O’Hare: does a law which targets religion for negative treatment run afoul of Free Exercise even if there is no evidence of hostility to religion?

The Third Circuit practically dared Justice Alito to take Long Branch for review by rolling back three Free Exercise decisions he authored while a judge of that court, even calling his last decision “perhaps an overstatement.”

The Court could do much to clarify Free Exercise law by taking up these cases. The Justices are expected to decide about that before the end of May.

A Columnist’s Kidnapping



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Who is this man and what has he done with George F. Will?

Here is George F. Will on March 6, 1987: “Alexander Hamilton, the Founder most relevant to the realities of the modern state, stressed the sovereign importance of ‘energy in the executive.’”

And on March 1, 1984: “[I]f Alexander Hamilton was not a conservative, then who was, or is or wants to be?”

And today, as though he had never even heard of Alexander Hamilton:

[M]any conservatives have not just become comfortable with the idea of a strong president, they have embraced the theory of the “unitary executive.”

This theory, refined during the Reagan administration, is that where the Constitution vests power in the executive, especially power over foreign affairs and war, the president, as chief executive, is rightfully immune to legislative abridgements of his autonomy.

Ahem.  This is precisely the view of Hamilton in the Federalist, in the Pacificus papers of 1793, and throughout his career as the most cogent exponent of the powerful presidency that saved constitutional republicanism from the imbecility of legislative supremacy.

Today George Will condemns Harry Truman for being “crucial to the magnification of the president’s war powers.”  That is, for being as interested in the energetic executive as Alexander Hamilton was.  Or as George Will once was.

But this George Will is also the columnist who on May 3, 1984 called “astonishing” the “difference between Truman’s views regarding U.S. capacities and responsibilities and the views of those in his transformed party who today praise him.”

That’s nothing.  What is astonishing is the difference between the George Will who used to make sense, and the George Will who today changes his principles because he is unhappy with the performance of a particular president who shares his first name.

A Quiet Public Servant, RIP



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I didn’t know Johnny H. Killian, who died last Sunday at the age of 70.  Truth to tell, until I saw his obituary in the Washington Post this week, I’d never even heard of him.  But like many others, I have benefited from his work.  Killian was for many years a senior specialist at the Congressional Research Service, and in that capacity was responsible for several succeeding editions of the massive reference work The Constitution of the United States: Analysis and Interpretation.  First published in the 1950s under the editorship of the great (and sometimes not-so-great) Edward S. Corwin, Analysis and Interpretation has been for half a century an indispensable reference for the scholar or student who wants to get up to speed quickly on the basics of doctrines and precedents expounded by the Supreme Court.  I first bought a copy of the 1982 edition long ago at a used bookstore in Washington, and it got fairly dog-eared before CRS published its successors, both of which (1992 and 2002) have been downloadable for free from the Government Printing Office.

A self-effacing public servant, Killian did not sign the fresh introductions that he presumably wrote (or led in writing) for the editions he supervised, though his name appeared in the leading position on the title page, along with the names of other editors.  Through the 1982 edition the original introduction by Corwin to the 1953 edition was always reprinted; in the last two editions this was omitted, which was an unfortunate choice on Killian’s part.  Though he may have come to see it as obsolete, its historical interest more than justifies the few pages it occupied in a more than 2,000-page work.

In other respects too Analysis and Interpretation is not perfect.  It is straightforward to the point of extreme dryness, which is to be expected.  It is fairly complacent in its embrace of judicial supremacy, which is too bad, but understandable in a work that attempts to keep up with constitutional doctrine chiefly as it is made by the Supreme Court.  But the great virtue of the volume has always been its breadth rather than its depth.  One can always turn to it to find, or to remind oneself of, the leading cases in any area of constitutional law.  I hope Killian’s colleagues at CRS keep up the good work in which he led them for so long.

Now if you want a reference that supplies pithy capsule essays on all the provisions of the Constitution, with not only analysis but also argument, get a copy of The Heritage Guide to the Constitution.

Re: Citizenship and Judicial Supremacy



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Bravo, Matt. 

 

In our common battle against the myth of judicial supremacy, you soundly observe that

“[s]omehow it never seems to occur to most law professors that …the Supreme Court [can’t] judicially change the meaning of the Constitution.”  I haven’t yet found the time to complete my reading of Lawrence Solum’s “Semantic Originalism” (which I blogged about briefly here and which Solum has supplemented with a series of responses—Part One, Part Two, Part Three, and Part Four—to one critic), but I’m pleased to report that Solum doesn’t suffer from this malady.  From his article (pp. 47-49, April 14, 2008 version):

 

[T]he semantic content of each clause of the Constitution is fixed at the time of utterance [i.e., ratification].…  The reason that the Supreme Court today cannot change the semantic content of an utterance made in the past is that such an act is impossible….

 

The power of the Supreme Court to create legal fictions or tell lies about the meaning of the Constitution cannot change the semantic content of the constitutional text.…  The Supreme Court cannot do magic.  Legal fictions and lies do not change facts.

 

Solum of course recognizes that, in light of “the institutions of judicial review and vertical stare decisis, the Supreme Court can change the effective legal meaning of the Constitution” (emphasis added).  But all that means is that it can often get away with its lies (or, where willful error is not involved, what I would instead call its mistakes). 

Tags: Whelan

Citizenship and Judicial Supremacy



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As David Freddoso noted on The Corner on Wednesday evening, and Gerry Bradley remarked here yesterday, the Senate passed a resolution by unanimous consent two days ago declaring its opinion “[t]hat John Sidney McCain, III, is a ‘natural born Citizen’ under Article II, Section 1, of the Constitution of the United States.”  McCain is the natural child of U.S. citizens, his father a naval officer at the time, assigned to duty in the Panama Canal Zone in 1936.  As I noted here two months ago (see here and here), this isn’t really all that hard a question.

Yet today the Washington Post, in an article by Michael Dobbs, continues to treat this matter as though it were actually complicated or difficult.  There might be circumstances in which it would be complicated–e.g., if a person were the offspring born abroad of an American parent and an alien parent who never married and never lived together in the U.S.–but in McCain’s case there is actually nothing so interesting.  Dobbs has just one source, law professor Sarah H. Duggin of Catholic University, for the proposition that the matter is (in her words) “not so simple.”  Duggin has co-authored, on this subject, one of those 100-page articles that seem de rigueur in law reviews.  Naturally something one has labored to discuss for 100 pages is not simple!

But really it is, in McCain’s case.  One is a citizen either by birth or by naturalization.  The “natural born” clause of Article II refers to the former status.  Is the child born abroad to American parents a citizen of the country in which he is born?  Maybe yes, maybe no–it would depend on the laws of the country in question.  If the answer is no, then either the child is a citizen by blood (jus sanguinis) of the U.S., or he is a citizen of no place at all, until and unless naturalized in and by the United States.  But we do not undertake the naturalization of the foreign-born children of our citizens.  The reason is obvious: we do not consider it necessary to naturalize them because we consider them citizens without our bothering to do this.  If this is wrong, then countless people who have thought themselves American citizens (and enjoyed all the rights and privileges appertaining thereunto) have actually been men and women without a country.

Dobbs also makes a serious misstep when he writes that “[t]he key constitutional issue is whether the Canal Zone was part of the United States at the time of McCain’s birth.”  Nope.  McCain’s mother could have given birth to little John on the Marrakesh Express and it would have made no difference.  Dobbs talks with Laurence Tribe, who he reports “looked into the case at the McCain campaign’s request . . . along with Theodore B. Olson.”  But he seems not to have read the Tribe-Olson report, reproduced in the April 30 Congressional Record (pages S3645-46).  In their few cogent paragraphs, Tribe and Olson establish McCain’s eligibility on the basis of jus sanguinis alone, and consider the location of his birth a “second and independent basis,” or in other words, icing on the cake.

But Dobbs is in thrall to Professor Duggin, who keeps telling him matters are “more complex” and who says (in Dobbs’s words) that “the matter can be fully resolved only by a constitutional amendment or a Supreme Court decision.”

Oh, please.  If we want to permit immigrants to run for president, by all means let’s amend the Constitution.  But it’s not the least bit necessary for clarifying the principle at work in Article II, if we wish to leave it alone.  As for a Supreme Court decision, the notion that one is a) necessary, or b) even possible is a sign of the law professor’s reflexive allegiance to judicial supremacy.  There are a few cranks attempting to gin up lawsuits on this question, including “New Hampshire resident Fred Hollander,” but as Professor Duggin notes (again in Dobbs’s words), such “plaintiffs are likely to have a hard time establishing their own eligibility, or legal standing, to challenge McCain.”  You bet your bippy they’d have a hard time.  This is a perfect textbook example of a constitutional question in which no one has standing because no plaintiff can show a concrete particularized injury.  It’s also a textbook “political question,” on which courts of law properly have nothing to say.  Yet with entirely unnecessary anxiety, Duggin says (her own words this time) “Imagine what would happen if the courts were to overturn an election simply based on eligibility.”

Somebody needs to stop worrying here.  If McCain wins in November, the declaration of his victory in the electoral college in January, by the joint session of Congress over which Vice President Cheney will preside, will be the authoritative constitutional settlement of the matter.  The Senate’s resolution the other day may not have the force of law, but it certainly forecasts the undoubted outcome in both houses if this matter bothers anyone in January.

Professor Duggin says that “Congress cannot legislatively change the meaning of the Constitution.”  That’s true.  Somehow it never seems to occur to most law professors that neither can the Supreme Court judicially change the meaning of the Constitution.  Yet so often the Court has presumed to do just that, and gotten away with it.  And the professoriate’s faith in judicial supremacy remains unshaken. 

Amazing.

Few Signs of Progress



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I don’t view Senator Leahy’s announcement of hearings for Sixth Circuit nominees Ray Kethledge and Helene White as a “downpayment” on much of anything, and certainly not as evidence that he plans to move many appellate nominations, let alone meet the Democratic leadership’s commitment to confirm three appellate nominees by Memorial Day.  At best, as this story suggests, it’s a sign that Leahy wants to fill this commitment by rushing through nominees that Democrats had already agreed to confirm — these two, plus fourth Circuit nominee Stephen Agee, who has a hearing scheduled for next week.  Other nominees, such as Peter Keisler for the D.C. Circuit and Fourth Circuit nominees Robert Conrad and Steve Matthews have been waiting for months, and merit action forthwith.

“Senate Unanimously Declares John McCain ‘Qualified’ to be President”



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There’s a headline you did not expect to see anywhere.  Especially not in The New York Times.  But that is pretty much what you will see in today’s edition.  Yesterday the Senate formally declared that, even though he was born on foreign soil, John McCain counts as “a natural born citizen.”  The reason why it matters is in Article II, section 1, clause 5 of the Constitution, which says: “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to be President.” Now, you know why Governor Ah-nold and Henry Kissenger — and millions of other American citizens — may not be President: they were not born here.  Nor were they naturalized before 1789 — or born into a military family while stationed in the Panama Canal Zone, as John McCain was.

The Senate’s non-binding resolution has not the force of law.  But it surely gets the law right.  A cheer, too,  for Senator Patrick Leahy, who (with Missouri’s Claire McCaskill)  was chief author of the resolution. 

Movement on Judges



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Senate Judiciary Committee Chair Patrick Leahy announced Wednesday that Hearings on three Michigan nominees will take place May 7 at 10 A.M. The nominees are: Helene White and Raymond Kethledge (to the Sixth Circuit), and Stephen Murphy (to Michigan’s Eastern District). Their hearings are a welcome development — if Leahy means them as downpayment on the rest of the 32 nominations pending in the Senate (ten to Circuit Courts; 22 to District judgeships).

Also today, the President nominated Michael M. Anello to be a Judge of the Southern District of California. Anello is an eminently qualified former Marine officer, local prosecutor, and private practitioner who is now a California state judge.

The clock is ticking on his confirmation hearing.

The Argument for Obstruction



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Al Meyerhoff, formerly of the Natural Resources Defense Council and now a trial attorney at the notorious  firm of Lerach Coughlin Stoia, makes the case for Democratic obstruction of Bush’s remaining appellate nominees in the Legal Times.  There’s not much to Meyerhoff’s argument beyond “they did it too,” and complaints that a majority of sitting federal judges were nominated by Republicans.  (Well, what do you expect when there have been Republican Presidents making nominations for 20 of the last 32 years?)

NLJ on Judicial Vacancies



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The National Law Journal reports on the rising tensions over federal judicial vacancies and pending Bush nominees.

Republican senators are anxious about 28 judicial nominees awaiting confirmation, the 46 total vacancies and the dwindling time left in President Bush’s term to get more of his candidates on the federal bench.

Of the 28 nominees waiting approval by the Senate, 10 are appellate court nominees and 18 are trial court selections.

The 4th U.S. Circuit Court of Appeals, in particular, is in the political crosshairs. With five of its 15 seats vacant and the current members of the court divided evenly with five Republican and five Democratic appointees, the president who fills those vacancies could shift the philosophical balance of the court.

As the article makes clear, Senate Democrats are confirming Bush’s appellate nominees at a slower rate than has been done in the past.

Bush confirmations lag behind the totals of his predecessors. He has had 298 judges confirmed so far in his two terms in office, including two Supreme Court justices, while Bill Clinton had 378 judges confirmed, which is second in history to President Ronald Reagan’s 389 judges.

The article also reports that recent deals may enable more nominees to go through. Yet for the reasons Gerard Bradley notes below, this is looking increasingly less likely.

The Senatorial Plot Thickens on Judges



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Earlier today Republican Senators Arlen Specter and Mitch McConnell exposed the Democrats’s latest bait and switch on judges.  Two weeks ago Majority Leader Harry Reid committed himself — and Judiciary Committee Chair Patrick Leahy — to move on judges by Memorial Day.  Reid said that he and
Leahy “would do everything we can do to approve three circuit court judges by Memorial Day…Who knows, we may even get lucky and move more than that.”

Naive observers might think that Reid’s and Leahy’s promise to move three judges had to do with, well, a quantity of judges between two and four.  But not according to the Democrats’ new math.  Senator Leahy now says that if two Michigan nominees he favors are not confirmed by May 23, perhaps no one will be.  “If the White House slow walks [their] paperwork, we probably won’t” make the Memorial Day deadline.

McConnell and Specter have called the Democratic leadership out.  “The clock is ticking,” they wrote to Reid and Leahy today.  “It has been two weeks since your commitment to do ‘everything’ you could” to confirm three nominees by the upcoming holiday recess.  Yet in that time the Committee has scheduled only one hearing.  “More troubling still is the fact that [Leahy] strongly indicated last week that the Committee may refuse to honor the commitment, not because it is impossible for it to do so, but because the Chairman’s preferred queue of nominees will not be ready in time…”.

I will post the Democrats’ next move as soon as news of it is received.

Justice Stevens vs. Senator Obama



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In today’s Wall Street Journal, John Fund has a very interesting article on how yesterday’s Supreme Court ruling on Indiana’s voter ID law (which I briefly discussed here) “reveal[s] a fundamental philosophical conflict between two perspectives rooted in the machine politics of Chicago”:  that of Justice Stevens, who, in a surprise, wrote the lead opinion rejecting the challenge to the law, and that of Barack Obama, who has vigorously opposed such laws.  A couple excerpts:

Both men have seen how the Daley machine has governed the city for so many years, with a mix of patronage, contract favoritism and, where necessary, voter fraud.  That fraud became nationally famous in 1960, when the late Mayor Richard J. Daley’s extraordinary efforts swung Illinois into John F. Kennedy’s column. In 1982, inspectors estimated as many as one in 10 ballots cast in Chicago during that year’s race for governor to be fraudulent for various reasons, including votes by the dead.  Mr. Stevens witnessed all of this as a lawyer, special counsel to a commission rooting out corruption in state government, and as a judge. On the Supreme Court, this experience has made him very mindful of these abuses.

So we have the irony of two liberal icons in sharp disagreement over yesterday’s Supreme Court decision. Justice Stevens, the real reformer, believes voter ID laws are justified to prevent fraud. Barack Obama, the faux reformer, hauls out discredited rhetoric that they disenfranchise voters. 

Tags: Whelan

Dimwits and Double Standards



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Last week, in a post on the contretemps of the small-minded that erupted at the University of Georgia when Justice Clarence Thomas agreed to be the commencement speaker there this spring, I referred to Thomas’s “career of distinguished public service.”  This brought an e-mail from a reader who identified himself only as “Neal,” arguing that Thomas is the Court’s least productive justice, as measured in opinions written–and so, says “Neal,” he is a “quota justice” who was appointed because he is black and didn’t deserve to be on the Court.  This sort of canard may be widespread, for all I know, and in any event is emblematic of the kind of disdain directed only at Justice Thomas, and only because he is not the left’s preferred version of a black man.  So I’ll rebut it here rather than in an e-mail to my contemptuous correspondent.

“Neal” refined his argument in a second e-mail to say that through 1999, Thomas had written the fewest opinions on the Court “by a good margin,” and that he only became and remained truly productive thereafter.  Well, let’s see.  Begin by leaving out Thomas’s “freshman” term, since he joined the Court after the October 1991 term began, and since most justices are relatively underproductive when they first begin.  According to the Lexis database, in the seven October terms that began from 1992 to 1998 (i.e., through June 1999), Thomas wrote 156 opinions (of all kinds: for the Court, concurring, and dissenting).  In the subsequent seven October terms, from 1999 to 2005 (through June 2006), Thomas’s output increased to a total of 181 opinions of all kinds, an increase of 16% in a period of the same duration. 

Looks like “Neal” has a point, right?  After all, in the terms 1992 to 1998, Justice Scalia was far more “productive,” being responsible for 218 opinions.  But wait.  In the subsequent period of the terms 1999 to 2005, Scalia’s production of opinions declined to 192 total opinions, a drop of 12% that brought him and Thomas very close together on this measure.  So should Scalia be excoriated for becoming lazier in the later period?

Let’s not stop.  Three other justices served for the entirety of both periods under review here.  How did they do?  In the 1992-98 period, Justice Stevens authored 297 opinions, but in the 1999-2005 period this fell to 229 opinions, a drop of 23%.  Justice Kennedy’s productivity rose very slightly, from 129 opinions in the 1992-98 period to 134 in the 1999-2005 period (up 4.7%).  And Justice Souter produced 151 opinions in the 1992-98 period, but only 132 in the 1999-2005 period (down 12.6%). 

Notice anything about this recitation of (mostly meaningless) “productivity” figures?  Justice Kennedy was considerably less productive than Justice Thomas in the earlier period, and remained so in the later one.  Justice Souter was slightly less productive than Thomas in the earlier period, and became markedly less so in the later one.  (So what was that again about Thomas producing the fewest opinions before 1999 “by a good margin”?)  If Justice Thomas is to be judged an unworthy appointee for the Supreme Court because his contributions have been so “slight,” what are we to make of two justices who have never outperformed him, one of whom has actually declined in productivity over time?

In truth, though, what are we to make of these numbers as indicia of how hard, how effectively, or how influentially the individual justices work?  Not much, actually.  But what can we say about people who pick out Justice Thomas’s “productivity” figures in isolation from his colleagues’ performance in order to market the canard that he was a “quota” appointee?  That they are dimwits using double standards.

In Bold Relief



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Over at The Corner Andy McCarthy links readers to a transcript of Leslie Stahl’s interview (telecast last night) with Justice Scalia. If you missed the show the transcript is surely worth a read. The Justice is engaging and unaffected (as always), and is to be especially admired for his willingness to portray himself as an old-fashioned Catholic, with deeply conservative views on some hot-button issues. (He even accounts for his nine children as the payoff for playing what he called “Vatican Roulette”.) Justice Scalia characteristically coupled his confessions of conservatism with the insistence that his convictions about what justice requires — and forbids — do not affect his constitutional rulings. The contrast to the modus operandi of quintessential liberal Arthur Goldberg (described by Ed Whelan and me last week) could not be more bold.

Given John McCain’s professed intention to nominate justices in the Scalia mold — and Barack Obama’s Goldbergian model of judging — we may have here, on Benchmemos in the space of a week, a preview of the Fall campaign.

A Reform Idea to Rally ‘Round



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Poaching a bit here on the territory staked out by Phi Beta Cons, I will draw our readers’ attention to a recent piece at Inside Higher Ed by Thomas Lindsay, arguing that we should place the study of American political principles at the center of the college curriculum.  Classic texts and classic questions, beginning with the Declaration of Independence, the Constitution, and The Federalist, can form the basis of a truly democratic education–an education in and for democratic citizenship–that is not merely “filial piety” but a “rational inquiry” of the sort universities exist for the purpose of pursuing.  Lindsay, the deputy chairman of the NEH, makes a powerful case that should be read in full.

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